Since the U.S. Food Drug Administration (FDA) issued Emergency Use Authorization (EUA) or full authorized use for three COVID-19 vaccines (Moderna, Pfizer, and Janssen), a question has troubled employers: are we or should we mandate COVID-19 vaccinations for our employees?
The question tries to strike a balance between ensuring employees’ safe working conditions; complying with local, state, and federal guidelines; and respecting an individual’s freedom of choice and medical circumstances. Thus, as of January 21, 2022, there is no clear answer, but recent developments may have shed light on the issue to help California employers make an informed decision for their employees.
New OSHA Rule Stalled in the Courts
Late last year, the Biden Administration announced it would direct the U.S. Occupational Safety and Health Administration (OSHA), the federal agency tasked with regulating and enforcing workplace safety laws throughout the U.S., to promulgate an emergency temporary standard (ETS) requiring businesses with 100 or more employees to implement COVID-19 vaccination mandates as a condition of their employment or require a health or religious accommodation for those employees.
Unsurprisingly, this decision was challenged in federal court by numerous covered private companies and interest groups against the OSHA ETS. On January 13, 2022, the United States Supreme Court struck down OSHA’s authority to promulgate such a rule unless the employee was a nursing home facility that received Medicare or Medicaid funds.
Estimates show that the rule would have prompted some-80 million employees across the U.S. to become fully vaccinated. In addition, under the rule, employers would have had to ensure compliance amongst their employees or face financial penalties from OSHA.
California’s Position on Vaccination Mandates
With the Supreme Court’s ruling comes new issues facing many California employers and employees, including whether employers should implement a COVID-19 vaccination mandate given that OSHA can no longer enforce the bulk of their vaccination ETS.
Currently, the California Department of Industrial Relations has created its own rules for addressing COVID-19 in the workplace. Under the current rules, set to expire next month, employers can request employees to submit proof of vaccination and require employees to be vaccinated. However, the decision to establish a mandatory vaccination policy is at the employer’s discretion and not a requirement by the State of California. If an employer has implemented or is seeking a COVID-19 vaccination mandate, below are some considerations employees should know when experiencing this process.
Mandating Vaccinations in the Workplace
Very little prevents an employer from mandating COVID-19 vaccinations for their employees. In fact, the underlying policy of requiring private-sector employers to mandate vaccinations is likely one of the most surefire ways to ensure as many Americans as possible receive a vaccine. However, while President Biden’s OSHA vaccination rule remains blocked by the Supreme Court, private companies are likely considering implementing their own mandates (if they have not done so already).
Compliance with the ADA
The Americans with Disabilities Act provides a framework for employees with disabilities to obtain reasonable workplace accommodations based on their ailments. The U.S. Equal Employment Opportunity Commission, the administrative body charged with handling workplace discrimination claims, including disabilities-related discrimination, has provided comprehensive guidance to employers required to provide their employees reasonable workplace accommodations under the law.
As COVID-19 vaccines have become widely available to most Americans, employers must consider two forms of workplace accommodations for employees that cannot obtain a COVID-19 vaccine, including health and religious accommodations.
Under a health accommodation, an employer must engage in what the EEOC refers to as the “interactive process” to provide an employee with reasonable accommodation. Under the interactive process, employees need not disrupt their employer’s business operations to accommodate them. Instead, they must provide the employee with reasonable accommodation based on the request. Under a health accommodation, an employer may allow an employee unable to take the vaccine to work from home, work in an area in the facility that is socially distant from other employees, wear a face covering, and engage in weekly testing for COVID-19.
Like health accommodations, an employer may need to make a religious accommodation per Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on an employee’s religion. Per EEOC guidance, an employee need not utter the “magic words” describing their requested religious accommodation. Instead, they need only notify their employer that their sincerely held religious belief prevents them from taking a vaccine. Like an ADA accommodation, the employer must determine how the employee can still perform their essential job functions and not take the vaccine based on their religious beliefs.
Employees Represented by a Union
Under Sections 8(d) and 8(a)(5) of the National Labor Relations Act, employers are required by law to bargain in “good faith” with the representative of a labor union. This can include bargaining the impact or effect of current workplace policies. Although employers have a fundamental right under the NLRA to make business decisions that impact the workplace, unions have a right to inquiry and bargain over their policies’ effect on their workers.
An employer that employs unionized employees can consider and adopt a mandatory vaccination policy for workers. However, to avoid receiving an unfair labor practice charge (a charge that the employer or union violated the law), an employer should notify the collective bargaining represented during the process of considering a vaccination mandate or when the policy has been adopted. This allows the employer and the union to engage in impact bargaining over how the policy will affect employees.
Again, a union cannot prevent the employer from adopting such a policy. Still, the union can bargain over how that policy impacts employees, including paid time off to get a vaccine or acquire testing, periods for employees to become fully vaccinated, and providing additional accommodations for employees unable to get vaccinated.
You May Need to Speak to an Attorney
Employers adopting a vaccination mandate should maintain the confidentiality of their employees by storing vaccination information in a separate file from the employee’s personnel file. Further, employers should continue to implement and enforce state and local COVID-19 mitigation measures, including wearing face coverings, providing proper sanitation, and enforcing social distancing, if required.
Perkins Asbill’s Sacramento business litigation attorneys have experience addressing a wide variety of employee discrimination. With a constantly changing workplace environment due to COVID-19, it is crucial to have legal representation. Contact (916) 446-2000 for a discreet consultation to get started on your case or discuss your options.